Ed. 232. Changes in this respect have been made in many states. In civil actions in California, Idaho, Louisiana, Nevada, Texas, and Washington, three-fourths may render a verdict ; two-thirds in Montana in civil ac tions and crimes less than felonies, and five sixths in Idaho, in all cases of misdemeanor. In Iowa the legislature may authorize a ver dict by less than twelve in inferior courts.
Unanimity is still required in England. In a case before the Judicial Committee of the Privy Council, where a British subject was convicted of murder in Japan, the court be ing comprised of a British judge and five jurors, established under a British treaty, it was argued by Sir Frank Lockwood that the British government could not establish such a court with a jury of less than twelve, but the court held that the conviction was law ful. [1897] App. Cas. 719.
A modification of the jury system, much considered and quite generally adopted, is the provision authorizing the parties to waive a jury and elect to have the facts tried by the court. This course in civil cases is au thorized in most of the states, as well as in the federal courts. It is provided for in the constitutions of Arkansas, California, Colo rado, Florida, Maryland, Michigan, Minne sota, Nevada, New York, North Carolina, Pennsylvania, Vermont, Wisconsin, Wash ington, and West Virginia. By statute a like practice obtains in Illinois, Missouri, New Jersey, and Wyoming, and also by the bill of rights in Arizona and by statute in New Mex ico. There can be a waiver in civil cases and in criminal cases not amounting to fel ony in Idaho, Montana, North Dakota, and California.
The general principle is, however, that in criminal cases, the accused can neither waive his right to a trial by a jury of twelve nor be deprived of it by the legislature ; Can cemi v. People, 18 N. Y. 128; Allen v. State, 54 Ind. 461; State v. Carman, 63 Ia. 130, 18 N. W. 691, 50 Am. Rep. 741 (contra, State v. Kaufman, 51 Ia. 578, 2 N. W. 275, 33 Am. Rep. 148) ; State v. Davis, 66 Mo. 684, 27 Am. Rep. 387 ; Bell v. State, 44 Ala. 393 ; Williams v. State, 12 Ohio St. 622 ; Kleinschmidt v. Dunphy, 1 Mont. 118 ; Swart v, Kimball, 43 Mich. 443, 5 N. W. 635. Judge Cooley, after stating that less than twelve would not be a common-law jury, or such as the constitution guarantees, adds, "And the necessity of a full panel could not be waived—at least in case of felony—even by consent" Coast. Lim., 4th ed. 395. It was held that where one juror was an alien the failure to chal lenge him was not a waiver of the objection, and on the refusal of the court to set aside the judgment, it would be reversed, on error ; Hill v. People, 16 Mich. 356 ; contra, State
v. Quarrel, 2 Bay (S. C.) 150, 1 Am. Dec. 637. One accused of crime cannot waive the ab sence of one juror ; Jennings v. State, 134.
Wis. 307, 114 N. W. 492, 14 L. R. A. (N. S.) 862 and note.
On the trial of a misdemeanor, a full jury may be waived; Com. v. Dailey, 12 Cush. (Mass.) 80, per Shaw, C. J. ; Tyra v. Com., 2 Mete. (Ky.) 1; U. S. v. Shaw, 59 Fed. 110 ; or where the peniilty is only a fine ; State v. Mansfield, 41 Mo. 470. A jury may be waiv ed in all civil cases, without any statute ; Roach v. Blakey, 89 Va. 767, 17 S. E. 228.
The fact that a court of chancery may summon a jury to try an issue of fact is not equivalent to the right of trial by under the seventh amendment of the constitution; Cates v. Allen, 149 U. S. 451,'13 Sup. Ct. 883, 977, 37 L. Ed. 804. And the constitutional right does not relate to suits over which equity exercised jurisdiction when the con stitution was adopted ; Davis v. Settle, 43 W. Va. 17, 26 S. E. 557; but the right cannot be defeated by giving equity jurisdiction over an action in which the right applies ; id. It is not impaired by an act giving the appellate court authority to reverse for excessive dam ages ; Smith v. Pub. Co., 178 Pa. 481, 36 Atl. 296, 35 L. R. A. 819. In that case it was held that the act which gives the supreme court "power in all cases to affirm, reverse, amend, or modify a judgment, order, or de cree appealed from and to enter such judg ment," etc., as it may deem proper and just, does not infringe upon the right of trial by 'jury and is constitutional ; and in a later case, this decision was adhered to, and it was further held that where the supreme court had reversed a judgment, without awarding a new venire, it might subsequently amend the judgment of reversal by adding thereto a for mal judgment in favor of defendant ; Nugent v. Traction Co., 183 Pa. 142, 38 Atl. 587 ; Dal Alas v. Kemble, 215 Pa. 410, 64 Atl. 559. ' A state law authorizing a judgment n. o. v. pnlhe whole record to be entered by an ap 'fiellate court• where a point requesting bind ing instructions has been reserved or de clined is in conflict with the seventh amend ment of the federal constitution; Slocum v. Ins. Co., 228 U. S. '364, 33 Sup. Ct. 523, 57 L. Ed. 879, where it was held that the circuit court of appeals in entering such a judgment under the state statute had acted improperly in not merely reversing the judgment with a venire. It is also held that a state statute providing that a new trial shall not be grant ed on account of the smallness of the dam ages is, if applicable •to federal courts, a vio lation of the seventh amendment ; Hughey v. Sullivan, 80 Fed. 72.